The state employee union alleges that officials eradicated emails directly pertaining to a public records lawsuit.
The Vermont State Employees Association asserts that correspondence between Agency of Natural Resources officials was “willfully and permanently” deleted in the middle of litigation by information technology officials in the agency.
In addition, the union charges that it was standard practice for Douglas administration officials to delete email correspondence when a “high ranking official” left office. A member of the Shumlin administration contacted for this story said that allegation is untrue.
It’s unclear which administration — the Douglas or Shumlin administration — oversaw the destruction of the memos. Though the incident in question technically occurred on the Shumlin administration’s watch, the newly appointed officials at the Agency of Natural Resources were unaware of the deletions, according to counsel for the union.
The union also asserts that Attorney General William Sorrell failed to place a hold on the records, even though the emails were central to ongoing litigation. Read the VSEA letter to Vermont Attorney General William Sorrell, Dec. 19, 2011.
The correspondence in question was from Wayne LaRoche, former commissioner of the Department of Fish and Wildlife, Brendan Cosgrove, Agency of Natural Resources policy director, and Jonathan Wood, former secretary of ANR.
The subject matter? The dismissal of Jens Hilke, a conservation biologist, in 2010 from the Department of Fish and Wildlife.
Abigail Winters, legal counsel for the union, filed a public records request, asking for an opportunity to review the email correspondence at the Agency regarding Hilke. She also asked to see email correspondence from the Department of Human Resources about Marshall86, computer software designed to keep tabs on employee computer use.
When Douglas administration officials told Winters she’d have to pay $1,200 merely to view the emails, she sued on behalf of VSEA. Her argument? State statute requires requesters to pay for paper copies of documents, but not for viewing the materials.
Washington Superior Court Judge Geoffrey Crawford agreed with VSEA and ruled in favor of gratis disclosure of the records last January. In a separate ruling filed in April, Crawford said the VSEA’s roughly $6,000 in court costs should be paid for by the state.
Winters then began part two of her public records odyssey. The court-ordered emails weren’t forthcoming. The correspondence went missing, she was told. ANR officials under the Shumlin administration tried to locate the material – to no avail. Finally, it became clear that the emails had been scrubbed from the system, prior to the Tropical Storm Irene flood that damaged ANR offices in Waterbury.
In a letter to Jeb Spaulding, the secretary of Agency of Administration for Gov. Peter Shumlin, VSEA alleges that the emails were “willfully and permanently deleted” weeks after LaRoche, Cosgrove and Wood left office. Read the VSEA letter to Secretary of the Agency of Administration Jeb Spaulding, Dec. 19, 2011.
“We have now been told by ANR that the emails cannot be found and no longer exist,” Winters wrote. “We have also been informed that it is a practice of the state information technology personnel to permanently delete state email accounts of high-ranking government officials shortly after they leave office.”
The only emails that are archived have already been pre-selected, printed and preserved, Winters wrote.
“Those records which officials do not want to preserve – even if the subject of ongoing public records litigation – are destroyed without any way for the public to ever see them,” Winters wrote.
Winters writes that the purging of the correspondence violates the Vermont Public Records Act, which prohibits the destruction of public records unless “authorized by law” or by the state archivist. She also invokes the Vermont Constitution, which “holds that officers of the government are legally accountable to the public.”
Though the state is “clearly in contempt of court by failing to comply with Crawford’s court order to allow VSEA to inspect the records,” Winters says, the union is not pursuing further court action. Instead, Winters asks the Shumlin administration to change the state’s practice of destroying electronic records and she advises the state to order all agencies and departments to “retain the email files of government officials.”
In a separate letter, Winters takes the Vermont Attorney General to task for failing to put a litigation hold on the records, which would have prevented the elimination of the email correspondence.
On Tuesday, Sorrell’s office said the Attorney General couldn’t comment on the letter’s contents until after he had officially received the letter from VSEA. (VTDigger.org provided a PDF of the document to Sorrell on Tuesday morning.)
Dan Barrett, an attorney for the Vermont-ACLU, said a litigation hold on documents is standard practice whenever you’re sued. “The first thing you’re going to do is preserve any documents relevant to the case,” Barrett said. “The lawyer has a duty to do that even if the other side hasn’t asked for that document.What’s worrisome is that these documents were destroyed while litigation was pending. That means there’s a real problem there. One of the things the attorney on the case should have done was he should have told the client not to destroy the records. You wonder if it’s happening not only in public records cases but also in other cases.”
Spaulding said he couldn’t comment until Wednesday, after he had an opportunity to “get people together” to discuss it.
Secretary of State Jim Condos said he had talked with Spaulding briefly about the matter, and he had held a meeting with Vermont State Archives and Records Administration staff on Tuesday. Condos said he was not aware of the state’s alleged practice of deleting emails after the departure of administration officials.
“I would have said that’s a bad thing,” Condos said. “In fact it’s funny because this issue has been going on with (Mitt) Romney.”
The Boston Globe recently reported that Romney, the Republican primary candidate for president, ordered his email correspondence destroyed shortly after he left office.
“The Romney staff, they took their hard drives so there was absolutely no trail that could be found,” Condos said. “I don’t know that that happened up here.”
Condos suggested that the emails VSEA requested may be residing on servers under a different email name. “There may be trails of this stuff people may not have gotten ahold of,” he said.
He said office is working with the Department of Information and Innovation to help agencies and departments develop best practices for managing electronic records.
Darwin Thompson, who is deputy commissioner of DII, said his department manages electronic records in collaboration with the Secretary of State’s office. “Our expectation is that email is managed like any other record whether paper or something else,” he said.
Deleting the emails of outgoing commissioners, secretaries and other high level officials is not standard practice, Thompson said. All email, he said, is treated equally — it’s archived on a server or kept on disc. “We don’t make a judgment on who someone is or where they were when someone makes a request.”
Attempts to reach retired Gov. Jim Douglas and Neale Lunderville, the former secretary of the Agency of Administration under Douglas, Tuesday evening were unsuccessful.
Disclosure: Dan Barrett, of the Vermont-ACLU, is representing Anne Galloway in a public records court case against the Town of Hartford.
Clarification: The headline for this story originally stated that the Douglas administration was responsible for deleting the email correspondence between ANR officials. It’s unclear which administration — the Douglas or Shumlin administration — oversaw the destruction of the memos. Though the incident in question technically occurred on the Shumlin administration’s watch, officials were unaware of the deletions, according to counsel for the union.
